[Cites 2, Cited by 0]
Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 9 March, 2026
Page No.# 1/5
GAHC010027612026
2026:GAU-AS:3439
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./426/2026
SHRI DEBA KAMAL BARUAH
S/O LATE TARUN CHANDRA BARUAH
R/O BOLIA GOHAIN PUKHURI, SURUJ NAGR, NAMGHAR PATH, P.S.
JORHAT, DIST. JORHAT, ASSAM, PIN-785001.
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR W R MEDHI, MR. M BISWAS,MR. SUMANTA TALUKDAR,A
KALITA,MR P TALUKDAR,A SAIKIA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 09.03.2026
1. Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard
Mr. B. Sarma learned Additional Public Prosecutor for the State of
Assam.
2. This application has been filed under Section 483 of Bharatiya
Nagarik Suraksha Sanhita, (BNSS) 2023 by Shri Deba Kamal Baruah, who
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has been detained behind the bars since 05.02.2026 (for the last 31 days)
in connection with Basistha P. S. Case No.47/2026, under Sections
250/199/308(5)/3(5) of BNS, 2023 read with Section 20(b)(ii)(A) of NDPS
Act, 1985.
3. The gist of the accusation in this case is that, on 03.02.2026, the
Superintendent of Central Jail, Guwahati had lodged an FIR before the
Officer-in-Charge of Basistha Police Station, inter-alia, alleging that two
police personnel, namely, LNK Kankan Borah and Debajit Das were found
to take undue advantage of their official duty within the jail premises and
were found to be acting in violation of lawful directions. It is alleged that
they used to ask for money from the prisoners in exchange of providing
better facilities. It was also alleged that they used to threaten to torture
and harass the jail inmates in jail premises if they don't succumb to their
demand. It is also alleged in the FIR that during regular frisking of the
police personnel engaged in the duty inside the jail premises 19 small
packets of suspected ganja were recovered from co-accused Kankan
Borah.
4. The learned counsel for the petitioner has submitted that the case
in which the petitioner is arrested has been registered under Sections
250/199/308(5)/3(5) of BNS, 2023 read with Section 20(b)(ii)(A) of NDPS
Act, 1985.
5. The main contention of the learned counsel for the petitioner is
that all the offences with which the petitioner is accused of committing in
this case are bailable except offence under Section 308(5) of BNS, 2023.
6. He further submits that neither in the FIR nor any other material
has been shown by the prosecution side that for committing the offence
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of extortion any person (jail inmates) were put in fear of death or
grievance hurt. Hence, he submits that even if the accusation made
against the petitioner are assumed to be true, only makes out the case
under section 308(3) of the BNS, 2023 which is a bailable offence.
7. He further submits that even the offence under Section 20(b)(ii)(A)
of NDPS Act, 1985 pertains to the small quantity of the contraband,
hence, the said offence is also bailable. He also submits that in the
meanwhile two co-accused namely, (1) Kankan Borah and (2) Debajit Das
have already been granted bail by this Court.
8. On the other hand, the learned Additional Public Prosecutor has
vehemently opposed the grant of bail to the petitioner on the ground that
the petitioner holding a responsible post of the Jailer of Central Jail,
Guwahati has been part of a racket involved in committing the offences
alleged in this case inside the jail premises, he submits that apart from
the petitioner three other Assistant Jailers were inquired into, however,
sufficient materials against the present petitioner has been found during
enquiry. He further submits that the petitioner has already put under
suspension and investigation is still going on.
9. He submits that though one of the jail inmates, namely, Kuldeep
Das voluntarily appeared before the Investigating Officer and it is also
reflected in the case diary, that his statement was recorded, however, no
such statement was found in the case diary.
10. I have considered the submissions made by the learned counsel for
both sides. I have also gone through the case diary.
11. On perusal of the materials available on record, it appears that all
the penal provisions under which the Basistha P. S. Case No.47/2026 has
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been registered are bailable except the offence under Section 308(5) of
the BNS, 2023. However, even on a cursory perusal of the aforesaid
provision, it would reveal that to attract the provision under Section
308(5) of the BNS, 2023, the accused must have committed extortion by
putting any person in fear of death or grievous hurt to that person or
other. However, at this stage, on perusal of the case diary, it does not
appear that the present petitioner, while committing extortion had put any
person in fear of death or of grievous hurt. No material is there on record
to indicate that.
12. As such the materials available in the case diary, as on date, are
not sufficient to make out a case under Section 308(5) of the BNS, 2023
against the present petitioner, the other offences being bailable, the
petitioner is entitled to get bail.
13. Accordingly, the above named petitioner is allowed to go on bail of
Rs. 30,000/- (Rupees Thirty Thousand) only with one surety of like
amount subject to the satisfaction of the learned Chief Judicial Magistrate,
Kamrup (Metro) with the following conditions:
i. The petitioner shall co-operate in the investigation,
ii. The petitioner shall not directly or indirectly make any
inducement, threat or promise to the informant or to other person
who may be acquainted with the facts of the case so as to dissuade
such person from disclosing such facts before the Investigating
Officer or to any Court.
14. As regards the statement of Kuldeep Das, who had voluntarily
appeared before the Investigating Officer is concerned, the Senior Officer,
who is supervising the investigation shall look into the aspect as to when
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the statement of Kuldeep Das is stated to have been recorded by the
Investigating Officer, why the same is not found in the case diary.
15. Upon conclusion of the enquiry, remedial measures may be taken in
this regard by the police administration.
16. With the above observations, this bail application is disposed of.
17. Let a copy of this order be furnished to the learned Additional Public
Prosecutor for forwarding the same to the Officer supervising the
investigation of the aforesaid case, so that the remedial measures may be
taken.
JUDGE
Comparing Assistant
